Requisitions are a crucial part of the real estate transaction process in Ontario. These inquiries seek clarification or correction of any issues or discrepancies found during the title search, such as outstanding mortgages, property taxes, and compliance with zoning bylaws. There are a variety of nuances regarding requisitions, which will be outlined in this blog. Understanding requisitions is vital for buyers and sellers in Ontario’s real estate market.

What is a Requisition?

A requisition refers to a formal request for information or clarification regarding the property’s title or related documents, typically made by the purchaser’s lawyer to the vendor’s lawyer. Requisitions are written after the completion of the title search, any off-title searches, and return of letter enquiries. As mentioned above, the purpose of a requisition is to rectify any title defects and any other problems that need to be resolved in accordance with the purchase and sale agreement.

Requisitions are typically subject to strict time-based restrictions, so they must be forwarded promptly. If received late by the vendor’s lawyer, the purchaser may forego any right to make complaints. It is always important to send a requisition as soon as possible.

Types of Requisitions

There are three types of requisitions:

1. Title requisitions;
2. Conveyancing requisitions; and
3. Contract requisition.

Title Requisitions

A title requisition is a formal request for specific information or documentation related to the ownership and status of a property’s title. Any such requisition must be submitted per the terms of the purchase and sale agreement. The Ontario Real Estate Association form (the standard agreement of purchase and sale) provides space for a mutually agreed-upon date and time to serve as a deadline to receive a title requisition. However, if one is not set, the Vendors and Purchasers Act sets the deadline to 30 days after acceptance.

Root title requisitions are a subset of title requisitions which pertain to issues in the title that would prevent proper conveyancing. Unlike the above, these requisitions are not subject to strict deadlines and they can be submitted up to the transaction date.

Conveyancing Requisitions

Conveyancing requisitions are formal requests for information or clarification related to the legal aspects of a property transfer. They cover a wide range of topics, including the property’s title, encumbrances such as mortgages or easements, zoning and planning issues, outstanding taxes, and compliance with local regulations. They are typically submitted for matters within the seller’s control. For example, a conveyancing requisition could be submitted if an old, fully paid mortgage was registered on title but was not discharged.

As with root title requisitions, conveyancing requisitions can also be submitted up to the date of the transaction.

Contract Requisitions

Contract requisitions refer to requests for clarification or additional information regarding the terms and conditions of the purchase and sale agreement. Terms can vary between each transaction, depending on the buyer’s specific needs. For example, contract requisitions can be used to rectify the following potential issues:

• The dimensions of the property are different than those described in the agreement of purchase and sale;
• Clarification of whether there are any outstanding work orders on the property;
• Clarification of closing date; and
• Clarification about what chattels and fixtures are included in the transaction.

Conveyancing requisitions are subject to a deadline if set by the parties. If not, such requisitions can be submitted up to the date of the transaction.

In essence, these requisitions are used to request performance or clarification on terms included in the contract.

The Rules Regarding Requisitions

Sending and replying to requisitions include formal requirements that must be adhered to. Otherwise, the purchaser or vendor may lose the right to make that specific complaint. When sending requisitions, they must be in writing and sent to the opposing party’s lawyer, typically within a reasonable time after reviewing the relevant documents. Requisitions should be clear, specific, and relate directly to the transaction’s legal aspects. The recipient of the requisitions must respond promptly and accurately, providing all requested information or documentation.

Contact Oakville Property Lawyers at Bader Law for Superior Representation in Real Estate Transactions

Requisitions can be fraught with difficulty and nuance so it is important to work with an experienced real estate lawyer during your transaction. At Bader Law, our seasoned team of real estate lawyers regularly represent individual and corporate buyers in real estate transactions in Mississauga and throughout the Greater Toronto Area. Our experienced real estate lawyers take strategic action to help clients navigate the uncertainties involved in residential and commercial real estate transactions. From reviewing an Agreement of Purchase and Sale to resolving title insurance matters, our team is ready to help and will ensure your real estate matters are tended to in a timely and professional manner. To schedule a consultation with one of our team members, contact us online or call our office at 289-652-9092.

Negotiating the purchase of a property is complicated and can fall through for various reasons. However, few buyers contemplate the possibility of the seller backing out of a sale at the eleventh hour, even after the paperwork has been executed. In volatile real estate markets, such as Toronto’s post-COVID market, cancelling real estate transactions is not common.

This blog will provide an overview of agreements of purchase and sale, as well as the options available to the buyer if a seller breaches this agreement.

Agreement of Purchase and Sale: The Basics

As its name implies, an Agreement of Purchase and Sale is a legal document outlining the terms and conditions of a real estate transaction between a buyer and a seller. In Ontario, it is a standardized document called an Ontario Real Estate Association (“OREA”) form, an example of which can be found here.

An OREA form includes the following information and terms:

1. Identification: The form identifies the parties involved in the transaction, including the buyer, seller, and their respective real estate agents.
2. Property Description: Details about the property, including its address, legal description, along with any included or excluded items are included in the form.
3. Terms and Conditions: This section outlines the terms of the agreement, such as the purchase price, deposit amount, financing details, and any conditions that must be met for the sale to proceed.
4. Legal Protections: OREA forms are designed to protect the interests of both buyers and sellers, ensuring that the transaction is fair and legally binding.

If a seller cannot meet their obligations under the Agreement of Purchase in Sale, they may be in breach. The seller may also back out of the transaction, possibly due to another higher offer or seller’s remorse. In that case, the buyer may be able to rely on any specific clauses in the Agreement of Purchase and Sale that require the seller to rectify the situation, or the buyer may choose litigation. The latter will be discussed further.

Certificate of Pending Litigation

A Certificate of Pending Litigation is a legal document that is filed to indicate that a lawsuit affecting a property is pending. It serves as a notice to potential buyers or lenders that there is a legal claim against the property. The Certificate of Pending Litigation can effectively restrict the property owner from selling or refinancing the property without addressing the pending lawsuit. Once the lawsuit is resolved, it can be discharged to clear the property title.

The Certificate of Pending Litigation is often used to protect the buyer’s rights and prevent the property owner from disposing of the property while the dispute is ongoing. This is most relevant if the buyer wants the courts to force the seller to proceed with the transaction, which can be achieved through specific performance, as outlined below.

However, as noted in Berthault v. Green Urban, registering a Certificate of Pending Litigation on the property requires a buyer to demonstrate that the losses incurred by the failed transaction cannot be compensated for by damages (i.e. money). The court’s discretion is highly dependent on the facts of the case and the damages the failed transaction causes to the buyer. The judge will examine whether restricting the right of the seller to dispose of the property to a third party against the damages caused to the buyer.

Although difficult to obtain, a buyer should always consider registering a Certificate of Pending Litigation if they seek to enforce the Agreement of Purchase and Sale.

Specific Performance to Force a Sale

Specific performance is a legal remedy where a court orders a party in breach to fulfill their contractual obligations. The remedy is typically used in real estate cases where monetary compensation would be insufficient. If one party breaches the contract, the other can sue for specific performance, asking the court to compel the breaching party to fulfill the contract’s terms. This would be the primary option for the buyer if they wanted to compel the seller to complete the transaction.

Despite its availability, this remedy is discretionary and granted if it’s feasible and fair to enforce. As stated in Semelhago v. Paramadevan, this remedy is available in cases where the buyer can demonstrate that the property is unique, and they cannot find anything else like it on the market. This may be difficult to prove in court despite a buyer’s subjective opinion of a property, which is why breaches of Agreements of Purchase and Sale are typically compensated for in damages.

Nevertheless, it is always best to speak to a lawyer when buying and selling property to ensure options are known and interests are protected.

Contact Mississauga Real Estate Lawyers at Bader Law for Commercial and Residential Real Estate Advice

Bader Law represents individual and corporate buyers in real estate transactions throughout Mississauga and the Greater Toronto Area. Our experienced real estate lawyers take quick and strategic action to help clients navigate the uncertainties that can accompany real estate transactions. From reviewing an Agreement of Purchase and Sale, to resolving title insurance matters, our property team is ready to help. To speak with one of our real estate team members regarding your real estate matter, contact us online or call us at 289-652-9092.

There are a myriad of reasons why a buyer may purchase a residential property. While some might want the property for personal use, others may choose to use it as an investment property, renting it to tenants for extra income. In the latter case, understanding landlord responsibilities before making the purchase is paramount for all parties to ensure not only a harmonious living experience, but also to ensure that particular legal requirements are addressed. This blog will outline landlord responsibilities and will serve as a primer on landlord and tenant law in Ontario.

Residential Tenancies Act, 2006

The Residential Tenancies Act (also referred to as the “RTA”) is the primary legislation that governs the relationship between landlords and tenants in Ontario. The Residential Tenancies Act includes provisions regarding the protections afforded to tenants against unjust evictions and arbitrary rent increases, while establishing guidelines for landlords to ensure property upkeep and timely repairs. It also outlines key regulations pertaining to lease agreements. The following sections outline the key components of the Residential Tenancies Act, but if the landlord is ever in doubt of their rights and responsibilities, the legislation should be examined.

Residential Tenancies Require a Standard Lease

One of the most significant changes to the Residential Tenancies Act is requiring landlords and tenants to use the standard lease, as found in the Central Forms Repository. The standard lease applies to single and semi-detached houses, apartment buildings, condominiums, and secondary units. However, it does not apply to tenancies with special rules, such as care homes, mobile home parks, and social housing.

There are consequences for landlords if the standard form lease is not used. For example, if the tenant requests (in writing) a standard lease, and the landlord fails to provide one, the tenant may withhold one month’s rent or give 60 days’ notice to terminate the tenancy early. Further, if the landlord continues to ignore the tenant’s request for an additional 30 days after the tenant has begun withholding rent, the tenant will not be required to repay the withheld rent. The landlord should provide the standard form for tenancy to avoid these consequences.

Access to Unit

Once the tenancy has begun, the landlord cannot enter the unit except under special circumstances. The landlord is only permitted to enter where advanced notice is provided to the tenant 24 hours in advance and specifies the reason, day, and time of entry. The reason for entry must also comply with the Residential Tenancies Act, which includes repair or replacement, potential mortgagee or insurer viewing, professional inspection, inspection for habitation standards, and other reasons permitted by the lease agreement. The landlord can enter without written notice, but only in an emergency or if the tenant permits their entry.

Every landlord must be familiar with their access rights and restrictions to avoid infringement of the Residential Tenancies Act.

Landlord Remedies

The landlord has important restrictions when it comes to remedies for the tenant’s non-payment of rent, or for repossessing the property. Typically, the landlord must begin proceedings with the Landlord and Tenant Board (also referred to as the “LTB”) to terminate the tenancy or recover the rental arrears. To do so, the landlord must provide the tenant with a notice to terminate a tenancy early for non-payment of rent, and after 14 days without repayment of rent, the landlord can bring an application to the Landlord and Tenant Board. The landlord cannot unilaterally seize the tenant’s goods as a remedy for non-payment.

The landlord is similarly restricted from terminating the tenancy and repossessing the unit. Even where the fixed-term tenancy ends, it converts to a month-to-month tenancy per the Residential Tenancies Act if the landlord has no right to repossess after the tenancy ends. The landlord can only repossess the unit under the “fault” and “non-fault” grounds under the Residential Tenancies Act. These include:

• The tenant has caused damage to the building;
• The landlord wants to personally occupy the property or for their spouse, child, or caregiver to occupy the property;
• The premises will be occupied by a person who will provide “care services” to the landlord.

Even where the landlord is entitled to repossess the unit, important procedural requirements must be met. Specifically, the Residential Tenancies Act includes notice periods for these grounds of termination. The landlord must consult the Residential Tenancies Act to confirm the applicable notice period when terminating a tenancy for the above reasons.

Rental Increases

The landlord is entitled to set the price or the rent at the outset of the tenancy, but there are particular restrictions regarding rental increases. The landlord is restricted from increasing rent more than once every 12 months and must provide at least 90 days’ notice when doing so. The Ministry of Housing sets the guideline for the amount that rent can be increased (typically around 2.5% per annum).

Despite this general restriction, the landlord can increase by above-guideline amounts if the landlord brings an application or if the tenant agrees to the above-guideline increase in return for a new service or expenditure. The landlord must consult the Residential Tenancies Act for the requirements for bringing such an application, and general restrictions when it comes to rent.

Get Advice for your Residential Real Estate Matters

If you are buying a property that is subject to a tenancy, or you intend to rent the property rather than retain it for personal use, the real estate lawyers at Bader Law can guide you through every step of your residential real estate transaction. We will ensure your interests are protected while assisting you through the process by reviewing all relevant paperwork and contracts, negotiating on your behalf, and defending your rights if a dispute arises. At Bader Law we also advise on employment, corporate, and estate matters. To learn more about how we can make the buying and selling process less stressful, contact us online or call us at (289) 652-9092.

From realtors to brokers, and every professional in between, real estate professionals play a pivotal role in facilitating property transactions with legal precision. Real estate professionals guide clients through buying, selling, or leasing properties, ensuring compliance with regulations. They also conduct market analyses, negotiate deals, and handle documentation while navigating Ontario’s dynamic market landscape, providing comprehensive expertise for individuals and businesses seeking seamless and secure real estate transactions.

The Ontario government recently modernized the province’s rules governing real estate professionals. This blog will highlight the changes so buyers and sellers are aware of the new obligations of their representatives.

Legislation Governing Real Estate Professions in Ontario

Multiple statutes govern real estate professionals in Ontario. Legislation typically targets a subset of the sector, such as:

1. Real Estate and Business Brokers Act, 2002

This Act governed the regulatory framework, licensing requirements, and standards of conduct for real estate brokers and salespersons.

1. Mortgage Brokerages, Lenders, and Administrators Act, 2006

This Act establishes licensing requirements, consumer protection measures, and standards for mortgage professionals.

1. Ontario New Home Warranties Plan Act

This Act requires builders of new homes to provide warranties to buyers, ensuring protection against defects and deficiencies in construction.

1. Condominium Act, 1998

This Act outlines the legal framework for creating and managing condominiums in Ontario and includes requirements for governance of condominiums.

However, the Ontario government recently updated legislation that governs most of the profession, including brokerages, brokers, and salespersons.

Updates to the Trust in Real Estate Services Act

The Trust in Real Estate Services Act (also referred to as “TRESA”) was passed in 2020, and replaced the Real Estate and Business Brokers Act, 2002 as a comprehensive update to the real estate profession in Ontario. The Trust in Real Estate Services Act updates consumer protection legislation governing Ontario’s real estate industry in Ontario. Implementing the Trust in Real Estate Services Act is to occur in three phases.

TRESA Phase 1

Phase 1 was completed in October 2020. It allowed real estate professionals to set up a personal real estate corporation, which essentially allowed these professionals to enjoy the benefits of incorporation. Before this legislation, real estate professionals operated as sole proprietors.

Under the Trust in Real Estate Services Act, a personal real estate corporation can take advantage of many tax benefits corporations enjoy. They can be taxed at a lower corporate tax rate, defer tax, and are permitted tax deductions. It also allows income splitting in very specific circumstances.

In essence, it allowed real estate professionals to incorporate and enjoy many benefits that other professions already do. It provided greater liability protection and tax benefits for real estate professionals.

TRESA Phase 2

Phase 2 has recently taken effect as of December 1, 2023. It offers many more consumer protections than those contained in the previous legislation, which include:

Designated Representation

Until Phase 2 came into effect, Ontario operated under a “Brokerage Representation” model, allowing the brokerage to represent both the buyer and seller in a real estate transaction. This model could result in concerns about a conflict of interest since the brokerage may not ensure the best interests of both parties while acting as fiduciary.

Instead, the Trust in Real Estate Services Act provides for implementing the “Designated Representation” model, where different agents within the same brokerage must represent the buyer and the seller separately. This model may alleviate the issues described above.

Removal of “Customer”

The Trust in Real Estate Services Act also removes any references to “customer” as a defined term. Instead, the Trust in Real Estate Services Act ensures that parties are appropriately labeled as clients. This change ensures that if an individual receives services, the brokerage must comply with typical client protections, such as entering into a representation agreement that customers do not typically require.

The Trust in Real Estate Services Act also expands the responsibilities of brokerages and agents when dealing with self-represented parties. Like a lawyer, services generally cannot be provided to a self-represented party. However, the registrant can provide “assistance” if an implied representation agreement is not created. This would involve the registrant encouraging the self-represented party to rely on the registrant’s “skill or judgment in respect of a trade in real estate.”

Overall, brokerages and agents are now subject to more stringent consumer protection obligations when dealing with parties to a transaction.

Competing Offers

Perhaps the most significant change introduced by the Trust in Real Estate Services Act was the ability to disclose additional information about competing offers. The previous legislation only permitted disclosure about the number of competing offers. In contrast, the Trust in Real Estate Services Act permits the disclosure of information such as, but not limited to, the purchase price, the amount of deposit, and the closing date. Sharing this information would require the seller’s written permission, which can be withdrawn at any time.

This change could significantly improve the transparency of real estate transactions. It also requires the seller’s agent or brokerage to be very diligent in adhering to seller instructions and the obligation not to disclose personal information.

Contact Bader Law to Understand Recent Legislative Changes Affecting your Real Estate Transaction

The experienced real estate lawyers at Bader Law remain up-to-date on the most recent legislative changes and requirements under the Trust in Real Estate Services Act. We also regularly represent and advise individual and corporate buyers across Mississauga and the Greater Toronto Area in real estate transactions, reducing financial risk, securing clients’ interests, and protecting their significant assets. To speak with a team member and learn how we can help you, contact us online or call us at 289-652-9092.

An Agreement of Purchase and Sale is the primary document governing property transfers between a buyer and seller. In Ontario, the Ontario Real Estate Association (“OREA”) form is the standard, which serves as a comprehensive template, ensuring consistency and clarity in contractual agreements between buyers and sellers and between real estate professionals and their clients. This blog will discuss issues common to residential property buyers and sellers in drafting an Agreement of Purchase and Sale using an OREA form.

Transactional Issues for the Buyer

The buyer must consider the following factors before purchasing a property, whether they are planning to purchase the property on their own or with other parties.

Multiple Parties on Title

Although the transaction may only include an individual seller to a buyer, the title to the property can be taken by multiple parties. The buyer can do so with a written “title direction,” which authorizes the seller to prepare the transfer in two names. This can be achieved if the direction is signed by the buyer and the other party or by assignment, where the buyer formally assigns and sells the agreement to a legal entity that is not an original party (as is typical when flipping a property). However, this must be cautiously permitted as it may result in a fraudulent transaction.

Multiple Buyers

Unique issues can arise when multiple parties are purchasing a property. The buyers would need to register as “joint tenants” or as “tenants in common,” the difference being in the manner of ownership. When buyers register as “joint tenants,” they legally share equal property ownership. In the event of one owner’s death, the property automatically passes to the surviving joint tenant(s). In contrast, when registering as “tenants in common,” each owner holds a distinct share of the property. In this scenario, these individual shares can be of equal or unequal proportions. In the unfortunate event of an owner’s death, their share does not automatically transfer to the surviving owner(s).

The issues arising from either ownership type can be mitigated by a co-ownership agreement, ideally before closing. In addition to the agreement of purchase and sale, this agreement can govern the relationship between each owner to avoid disputes.

Trustees and Agents

A buyer may offer to purchase a property in trust or on behalf of a corporation. In such a case, the buyer would likely want the option to assign the agreement to the corporation before closing. Although this is possible, the buyer should be wary of their continued liability. If, for some reason, the trust or new corporation defaults on the agreement during closing, the buyer could be liable for any resulting damages. Therefore, if the buyer intends to purchase a property on behalf of another entity, the liability obligations in the OREA form should be consulted or negotiated heavily.

Transactional Issues for the Seller

A property seller also has unique considerations, depending on the circumstances of the transaction.

Identification of Sellers

Correctly and diligently including all the property sellers in the agreement is crucial to effecting the transaction. If the property is owned by more than one individual or entity, all registered owners must be party to the agreement of purchase and sale. Suppose a registered owner is not identified as a seller and does not sign the agreement. In that case, the buyer may not have any rights or remedies against them, leaving the identified seller as the only party liable if the transaction goes poorly. Sellers should ensure that all registered owners are listed, and if not, an amendment to the agreement is proposed before closing to add such parties.

Sale of Estate Property

There are special considerations when a property is sold as part of a deceased’s estate. Specifically, the estate trustees must ensure that they are correctly appointed. Only then can they affect a property transfer on behalf of an estate, and only if all trustees sign the agreement. If trustees still need to be appointed, the transaction can be made conditional upon such appointment.

Seller Not Registered Owner

There are instances where the property is sold by a party other than the registered owner, such as the sheriff, to satisfy a debt or by power of sale. It may be the case that the registered owner may prevent that property sale by making payments to the sheriff or mortgagee, in which case the buyer may be precluded from enforcing the sale. Therefore, in these situations, the rights and responsibilities of the seller should be carefully examined or modified in the agreement.

Matrimonial Home

Matrimonial homes have a special status in Ontario. As stated in the Family Law Act, selling a matrimonial home requires the spouse‘s consent. To adhere to this legal requirement when selling a property, the unregistered spouse must sign the agreement despite any lack of a formal title. Failing to secure their signature may result in an inability to compel their consent during the final transfer, potentially impeding the seller’s ability to complete the transaction.

Contact Mississauga Real Estate Lawyers at Bader Law for Commercial and Residential Real Estate Advice

Bader Law represents individual and corporate buyers in real estate transactions in Mississauga and throughout the Greater Toronto Area. Our experienced real estate lawyers take strategic action to help clients navigate the uncertainties involved in various real estate transactions. From reviewing an Agreement of Purchase and Sale to resolving title insurance matters, our team is ready to help. At Bader Law  we ensure your real estate matters are tended to in a timely and professional manner. To schedule a consultation with one of our team members, contact us online or call our office at 289-652-9092.

Land ownership is a cornerstone of modern legal rights. With its capacity to generate income for farmers and landlords and serve as dwelling spaces for owners and tenants, land stands as a valuable and limited resource. As such, ensuring a definitive ownership structure is crucial. To ensure a clear ownership history and perseverance of legal rights, Ontario boasts one of the world’s most sophisticated land registration systems. The advanced nature of Ontario’s land registration framework underscores its commitment to a transparent and efficient property ownership landscape. This blog will provide an overview of this system and what it means for landowners in Ontario.

Land Registration Legislation in Ontario

The overall purpose of a land registration system is to record the interests that parties (whether they be individuals or other legal entities, such as a corporation) have in the land. It enables documentation of the priorities of these interests and what encumbrances may exist on the land. It also includes important additional information, such as when a property is subject to an easement or a subdivision agreement.

Ontario has two land registration systems: the registry system, governed by the Registry Act, and the land titles system, governed by the Land Titles Act. The primary difference is that the registry system relies on a chain of deeds for proof of ownership, and the land titles registration system issues a government-backed title certificate, offering a more conclusive and guaranteed form of ownership.

Special consideration must be given to each system and the information they contain when performing title searches and examining the priority of interests on the land.

The Registry System

The Registry Act allows for a broad range of instruments to be registered in the registry system: “every instrument where be transferred, disposed of, charged, encumbered or affected in any other way.” As such, any Crown grant, deed, conveyance, mortgage, assignment of mortgage, assurance, lease, release, discharge, and agreement for sale and purchase of land can be registered.

The effect of registering an instrument in the system “constitutes notice of the instrument.” This means that the document has been officially recorded and registered in the registry system, which serves only as notice of the interest or encumbrance. The specifics of the interest are contained within the document.

The instrument is considered registered when the registrar has accepted the documents for registration. The priority of the interest under this system is given by the priority of registration unless there has been “actual notice of the prior instrument by the person claiming under the prior registration.” The priority of registration is critical – if property is disposed of to two different people, the Registry Act stipulates that the individual who registers the instrument first will have priority. Accordingly, this can have significant consequences for any individual who does not register their instrument.

The Land Titles System

The land titles system confirms ownership of property at a particular time. Unlike the registry system, it does not define an “instrument.”

The effect of registration in this system has a different consequence than the registry system. When an instrument is registered, the registrar “rules off” the previous instrument, disposing of the same interest. The parcel registrar will display the last registered instrument for the property. This system allows the lawyer to avoid examining the “ruled off” instrument when completing a title search.

Similar to the registry system, no instrument is registered unless “certified” by the registrar. The priority of interests is also given by the priority of registration.

Due Diligence: Which System Do I Check?

Although the land title system may seem the more intuitive choice when completing research on land interests in a property, it is important to check both. For example:

• Ownership Information

The land titles system is a more efficient snapshot of the land’s ownership due to the “ruling off” mechanism. It is also certified by the Ontario government. However, determining the existence of any complex historical rights can only be done through the registry system, which could reveal nuances such as historical uses and changes in property boundaries.

• Transaction Details

The land titles system can be used to confirm that the current owners have correctly attained their right to the land from a previous instrument. This serves as an important due diligence check. Still, it does not contain a detailed history of transactions, which can track the history of property transfers to ensure no adverse land uses that could affect property value in the future.

• Indefeasibility of Title

The relative weakness of the registry system lies in the principle of indefeasibility of title, meaning that once a person is registered as the owner, their title is generally considered valid and immune to most claims that are not noted on the title certificate. Even so, the registry system may reveal the identity of any parties making (or having the potential to make) such a claim.

The registry system and the land titles system serve different needs, but together they provide a complete picture of the property’s ownership history, identify any potential risks, and ensure a comprehensive understanding of the rights and interests associated with the land.

Contact Bader Law in Mississauga for Real Estate Advice

The experienced real estate lawyers at Bader Law regularly represent and advise individual and corporate buyers across Mississauga and the Greater Toronto Area in real estate transactions. Our experienced real estate team takes strategic action to reduce financial risk, secure clients’ interests, and protect their significant investments in order to minimize the risk of disputes and litigation. We frequently review Agreements of Purchase and Sale, handle title insurance matters, and assist clients with mortgages and refinancing. To speak with a member of our team and learn how we can help you schedule a consultation, contact us online or call 289-652-9092.

Properties come in all shapes and sizes, and some even have unique legal rights. Properties with access to water possess “riparian rights,” which provide for the owners’ exclusive use of water and shoreline. This blog post will explore the concept of riparian rights in Ontario in light of a recent decision that demonstrates how a party may breach the riparian rights of an individual.

What are Riparian Rights?

Riparian rights refer to the legal rights and responsibilities of landowners concerning bodies of water such as rivers, lakes, and streams adjacent to their property. These rights include:

1. Access to Water: Riparian landowners have reasonable access to the adjacent water body.
2. Water Use: Land owners can use the water for domestic purposes but must not interfere with others or the natural flow of the water.
3. Maintenance: Landowners are responsible for waterfront maintenance and compliance with regulations.
4. Water Quality: Riparian landowners can protect their water quality interests.
5. Boundaries: Property boundaries are often defined by the high-water mark.

For various reasons, many developers and riparian landowners construct structures on their lands adjacent to the body of water. However, these buildings can have significant consequences for their neighbours. The infringement of riparian rights caused by such a building was recently considered in the Court of Appeal for Ontario.

Appellants Purchase Cottage with Derelict Boathouse

In Browne v. Meunier, the appellants had purchased a cottage on the St. Lawrence River in 2017. The cottage neighboured a property owned by the respondents which was purchased in 2015. The appellants believed the cottage they had purchased included an old boathouse. However, it was later discovered that the boathouse was constructed in 1969 by the respondent’s predecessors in title and was owned by the respondents.

The appellants confirmed that the boathouse was “located directly in front of their property” by a survey completed in 2018. They soon brought an action that sought, among other things, a declaration that the boathouse interfered with their right to access the St. Lawrence River.

Superior Court Finds Action was Time-Barred

In the first instance, the Court found that the appellant’s riparian rights to access the waters of the St. Lawrence River had been restricted by the boathouse’s location.

The Court was influenced by the case of Glaspell v. Ontario, in which the Court laid down rules related to access, such as:

(i) A riparian owner’s rights are not founded on ownership of the bed of the lake or river but on access to the water;

(ii) a grant of land to the water carries with it to the grantee the right of access to and from the water from any point of his or her own lands;

Since the boathouse was located directly in front of the property, the appellants were prevented from “using their waterfront as they wish.” They would need to navigate around the boathouse and they were prevented from building a dock in that location. This constituted a “substantial obstruction to the water access.”

However, the Court also decided the case was time-barred under the Real Property Limitations Act. Specifically, sections 4 and 15 in the Real Property Limitations Act state that the limitation period is 10 years for a land action, and if such an action is not brought within 10 years, the right to bring an action is extinguished. The appellants claimed that the 10 year limitation period began to run when the violation of their riparian rights was said to have been discovered, but the Court disagreed; the limitation period began to run from 1969 and was extinguished 10 years later, per the operation of the Real Property Limitations Act.

The appellants appealed, claiming that the judge misapprehended the discoverability rule and committed an error by finding the discoverability rule does not apply to section 4.

Court of Appeal Applies Discoverability to Section 4 of the Real Property Limitations Act

The Court of Appeal addressed the discoverability issue in two stages:

(1) analyzing whether the discoverability rule applied to section 4; and

(2) analyzing when the cause of action was discoverable.

Firstly, the Court of Appeal was persuaded by the common law rule of discoverability codified in Pioneer Corp. v. Godfrey, where “discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury.” The wording in section 4 specifically required that an action be brought within 10 years by the person to whom such a right “first accrued.” Thus, the Court of Appeal found that since “the trigger for bringing the action is, expressly, the accrual of the action and not some external event,” discoverability did apply to section 4 of the Real Property Limitations Act.

Nevertheless, the Court of Appeal still found that the case was time-barred. Since the right of action accrued “to some person through whom the person making it or bringing it claims,” the right accrued to the predecessor in title of the appellants. Since the boathouse was constructed directly in front of the property, the infringement of riparian rights would have been “obvious” immediately upon its construction. The right to bring an action was extinguished ten years later in 1979.

The Real Estate Lawyers at Bader Law Help Clients Protect Their Legal Rights

The real estate lawyers at Bader Law represent and advise individual and corporate buyers in real estate transactions in Mississauga and throughout the Greater Toronto Area. Our firm regularly advises individual and corporate clients on various real estate matters and disputes. Our talented lawyers work efficiently to reduce risk, protect clients’ interests, and preserve their substantial financial investments. We help clients review Agreements of Purchase and Sale, resolve title insurance matters, and assist with mortgages and refinancing.

Bader Law ensures that your real estate disputes are resolved in a timely and professional manner. Contact us online or call us at 289-652-9092 to schedule a consultation with a member of our real estate team.

In Canada’s current high-interest rate environment, some homeowners may be required to sell a property. Real estate transactions can be complicated in basic circumstances, but this process could become even more complicated if a property is owned by joint tenants. A recent case before the Ontario Superior Court of Justice demonstrates the problems that could occur when one joint tenant wants to sell a property and the other does not.

The Basics of Joint Tenancy in Ontario

A joint tenancy is a form of property ownership where two or more individuals share equal and undivided property ownership. The critical feature of joint tenancy in Ontario is the right of survivorship. If one co-owner passes away, their share automatically transfers to the surviving co-owners without going through the deceased person’s estate. All co-owners have equal ownership and decision-making rights in the property. They also share financial responsibilities equally, such as property taxes and maintenance costs.

A joint tenant can, however, request a partition and sale if they wish to sever the joint tenancy and no longer want to co-own the property with the other joint tenant(s). This ability is provided for in the Partition Act and the Rules of Civil Procedure, and an application under this legislation was the subject of the case mentioned above.

Parties Purchase Property Together

The case of Weise v. Weise involved the respondent and her husband, the applicant’s brother. The respondent and her husband intended to purchase a property in Sault Ste. Marie together but could not qualify for a mortgage. They sought the applicant’s help, which she accepted, and entered an Agreement of Purchase and Sale with the respondent to purchase the property. The applicant and respondent were both registered on title as joint tenants, and they were also joint mortgagers.

The applicant also entered a separate trust agreement, making her a bare trustee. The respondent was the beneficial owner of the land. Per this trust agreement, the respondent was responsible for all land-related expenses, which included realty taxes, insurance, heat, utilities, mortgage payments, and maintenance repairs.

Applicant Brings Application for Partition

After living at the property for approximately ten years, the respondent and her husband separated, and he moved away from the property. Not long after, the bank began withdrawing payments from her account, alleging that the respondent was failing to make hers. The respondent made several requests to have her name removed from the title and mortgage or sell the property. The applicant never responded.

The applicant then brought the application under the Partition Act and the Rules of Civil Procedure to have the land sold.

Applicant Lacked Joint Ownership Rights

The Court refused to grant the application on the grounds that the applicant did not have “all the rights, powers and obligations of a joint owner and/or that she has an interest in the Property by being named a joint owner and/or having agreed to be a joint mortgagee.” The judge relied on the fact that the applicant had agreed to be a bare trustee, which was supported by the evidence.

A bare trustee is a legal concept where a person or entity holds and manages assets or property on behalf of another party but lacks significant control or discretion over those assets. They have no authority to make decisions or act independently concerning the assets they hold. The bare trustee’s role is to safeguard and transfer the assets as instructed by the beneficial owner, who retains complete control and ownership rights. As noted by the judge, this is supported by the case law, such as in Paragon Development Corporation v. Sonka Properties Inc. and Trident Holdings Ltd. v. Danand Investments Ltd.

Respondent Had Complete Control of the Property

The judge also found that the trust agreement did not grant the applicant the power to seek to sell the partition and sale of the property. The terms of the agreement stipulated that the applicant “shall not, without the written consent of the respondent, convey or encumber her interest in the Property in any manner whatsoever.” In the judge’s words, the respondent had “complete control” of the property.

However, the judge found that the applicant was entitled to indemnification; the respondent is liable for the debts and obligations of the respondent. She is entitled to bring a claim against the respondent for costs incurred as part of her duties as a bare trustee.

This case demonstrates the effectiveness of legal planning in joint tenancy arrangements and how a trust agreement can prevent the partition of a property sale. If the respondent was a joint tenant and had not agreed to be a trustee, her application might have succeeded.

Contact Bader Law for Advice on Joint Tenancy and Residential Real Estate Disputes

Buying and selling real estate is often one of the most significant financial transactions a person or company will make in their lifetime. Hiring a law firm with adequate experience, skills, and resources is important to ensure that you feel confident that your interests are protected and your transaction closes smoothly. This is especially true if you are purchasing property as a joint tenant.

At Bader Law, our trusted real estate lawyers represent individual and corporate parties in both residential and commercial real estate transactions in Mississauga and throughout the Greater Toronto Area. Whether you require assistance reviewing an Agreement of Purchase and Sale, are purchasing a new home, or require assistance with a refinance, our team will advise you on your options, help secure your interests, and work to protect your financial investments. To learn more about how we can ensure your real estate needs are met, contact us online or at (289) 652-9092.

Selling a property can be fraught with difficulty. From ensuring your property is ready for sale, to understanding your obligations as a seller, numerous legal hoops exist. One important factor to keep in mind is how the proceeds will be distributed after the sale if there are multiple interested parties, such as in cases involving a multi-generational home. In light of Ontario’s housing crisis, this factual scenario may become more common in the coming years.

In Sidhu v. Sidhu, the Ontario Superior Court of Justice was presented with such a scenario. This case sheds light on how the Court will apply equitable remedies to resolve disputes over who is entitled to the proceeds of sale.

Unjust Enrichment in Ontario

In Ontario, unjust enrichment is a legal principle that aims to prevent one party from benefiting unfairly at the expense of another. It occurs when someone gains an advantage or receives a benefit without a legal justification, and it would be unfair to allow them to keep that benefit. The current test for unjust enrichment involves the court considering the following factors:

1. Whether one party was enriched;
2. Whether there was a corresponding deprivation to the other party; and
3. Whether there is a juristic reason for the benefit and corresponding detriment (i.e., legal and policy issues that should allow such a benefit).

In the case at hand, one party claimed that the other was unjustly enriched due to a shared residence being sold. If the court agreed, the party claiming would be entitled to a 50% interest in the proceeds gained from the sale.

Ownership Interest in the Property

The matter in Sidhu v. Sidhu involved a dispute between the matriarch of a family, the applicant/cross-respondent, and her eldest son and daughter-in-law, the respondents/ cross-applicants, over the proceeds of the sale of a property. The applicant purchased the property in 2004, and she was subsequently the sole title holder. The respondents moved into the property shortly after.

As part of the living arrangements, it was agreed between the parties that her son, one of the respondents, would act as the house manager. He also managed the family bank account, which he used to manage the property.

Family Members Asked to Move Out of Home

In 2015, the family started to argue about the property. In response to a threat by the respondents that they would move out and stop managing the property, the respondents alleged that the applicant would only retain a $250,000 interest in the property if they stayed. The applicant denies this allegation. Eventually, due to disagreements, the applicant asked the respondents to move out, but they refused, claiming an interest in the property.

On August 31, 2022, the application brought an application for partition and sale of the property, and the respondents brought a cross-application claiming unjust enrichment and a 50% interest. Not long after, the property was sold, and the parties could not agree on how to distribute the majority of the proceeds.

Court Finds No Adjustment Enrichment

The respondents claimed they were entitled to 50% based on their contributions to the mortgage and maintenance costs. The applicant claimed that she was entitled to 100%, and the financial contributions made by the respondents constituted rent.

The Court found that the applicant was not unjustly enriched, as both parties had benefited from the arrangement. In applying the three-prong test, the Court noted no evidence to support the applicant’s enrichment and the respondents’ corresponding deprivation. The parties “knowingly and intentionally organized their affairs to meet their own unique needs.”

The applicant benefited from the respondents’ property management, especially since she had recently fallen ill and could not contribute as much to the joint family account. There is no doubt of the applicant’s benefit. However, the respondents also benefited by saving money that would have otherwise been used to pay rent elsewhere, both for residential and commercial means, as they also operated their respective businesses out of the property. As to the respondents’ claim that they incurred expenses on behalf of the property, the judge found no evidence to support this claim. In fact, the judge ruled that it was more likely that they had paid for these expenses using the joint family account.

Complexities Involved in Selling a Property With Multiple Interested Parties

Overall, the judge totaled the respondents’ contributions to the joint family account and subtracted the amount they paid for rent and the benefits they accrued through their corporation. The leftover amount clearly demonstrated that the respondents were not deprived in any way. Therefore, the applicant was not unjustly enriched, and the judge found that the applicant was entitled to all of the property sale proceeds.

This case highlights the complexity of selling a multi-generational home. It is conceivable that the judge might have ruled differently if the respondents had been deprived rather than benefited. Therefore, if living in a similar arrangement, it is crucial to consider each party’s contributions to the home to avoid such a dispute.

Contact the Lawyers at Bader Law for Effective Real Estate Advice

Buying and selling real estate is often one of the most significant financial transactions a person or company will make in their lifetime. Hiring a law firm with adequate experience, skills, and resources is important to ensure that you feel confident that your interests are protected and your transaction closes smoothly.

At Bader Law, our trusted real estate lawyers represent individual and corporate parties in both residential and commercial real estate transactions in Mississauga and throughout the Greater Toronto Area. Our team will advise you on your options, help secure your interests, and work to protect your financial investments. To learn more about how we can ensure your real estate needs are met, contact us online or at (289) 652-9092.